Published TextsFighting Corruption & Code of Conduct Tribunal

December 15, 20150

Fighting Corruption & Code of Conduct Tribunal: Compelling Need for A Proper Legal Framework

*By Babatunde Ogungbamila*

INTRODUCTION

Babatunde Ogungbamila Everyone agrees that corruption is the canker-worm gnawing at the very fabric of the Nigerian economy. It is also common ground that corruption must be stopped or reduced to barest minimum should Nigeria hope to regain its pride of place in the comity of nations, and judiciously ultilise its resources in the overall welfare of its people.

Corruption abounds both in the public and private sector of our economy. Although both negatively affect the Nigerian economy, the more devastating, arguably, is corruption in the public sector. One veritable way of quickly detecting a corrupt public officer or political office holder is the comparison of his assets vis vis-a-vis his income, or a comparison of his assets before assumption of office with his present assets.

This makes the constitutional prescription of declaration of assets by public officers and political office holders very vital. The Code of Conduct Bureau is constitutionally saddled with the responsibility of ensuring that assets declaration is not only done, but honestly done. The Constitution makes an infraction of the Code of Conduct punishable. In the spirit of fairness, the Constitution establishes a Code of Conduct Tribunal (CCT) to try offending persons.

The National Assembly has enacted the Code of Conduct Bureau and Tribunal Act, 1989 (the Act) pursuant to Paragraph 15(4) of the 5th Schedule which provides that “the National Assembly may by law confer on the Code of Conduct Tribunal such additional powers as may appear to it to be necessary to enable it more effectively discharge the functions conferred on it in this Schedule.

In conferring additional powers on the Tribunal, the National Assembly confers criminal jurisdiction and empowers the Attorney General of the Federation (AG) to prefer charges against public officers who allegedly flout the Code of Conduct.

This raises the question as to the constitutionality of the Act and the powers of AG to prefer criminal charges before the Tribunal. This paper tends to focus the mind of the Supreme Court to these jurisdictional issues and lay to rest issues in respect to the status, powers and jurisdiction of the Tribunal. This will set the proper legal framework for the functions of the Tribunal in the fight against CORRUPTION.

CCT’S JURISDICTION AND THE CODE OF CONDUCT BUREAU AND TRIBUNAL ACT

There is no doubt that every court is endowed with jurisdiction by statute or the Constitution and where a court exercises jurisdiction in a matter which it does not possess, the decision from such an exercise is a nullity. Therefore every court must assure itself that it has the requisite jurisdiction before embarking on the hearing of the matter to avoid a waste of precious judicial time. See PETROJESSICA ENTERPRISES LTD & ANOR V. LEVENTIS TECHNICAL COY. LTD (1992) 5 NWLR (pt 244) 675, OSADEBAY V. A-G. BENDEL STATE (1991) 1 NWLR (pt. 169) 525, OWONIBOYS TECH. SERVICES LTD V. JOHN HOLT LTD. (1991) 6 NWLR (pt. 199) 550.” Per OKORO, J.S.C. (P. 54, paras. D-G).

Paragraphs 1 to 11 of the 5th Schedule to the Constitution prescribes a code of conduct for public officers. . The Code of Conduct Bureau is established by Section 153 of the Constitution and its composition and powers are contained in Part 1 of the 3rd Schedule to the Constitution. Paragraph 3 (a –g) enumerates the powers and functions of the Code of Conduct Bureau. Section 3(e) provides that the Bureau shall have powers to receive complaints of non- compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto; investigate the complaint and where, appropriate, refer such matters to the Code of Conduct Tribunal.

The Code of Conduct Tribunal is created by Paragraph 15(1) of the 5th Schedule to the Constitution to hear and decide such complaints as may be referred to it by the Code of Conduct Bureau. Paragraph 18 of the 5th Schedule to the Constitution prescribes the punishment which the Code of Conduct may impose on any public officer found guilty of contravention of any of the provisions of the Code.

It is clear from the above, that the Code of Conduct Tribunal is established to punish public officers who act in contravention of the Code. The public officer must have been referred to the Tribunal by the Code of Conduct Bureau. It is obvious that the Constitution establishes the Tribunal to serve as a disciplinary body to erring public officers. The jurisdiction of the Tribunal is restricted to sanctioning the public officers in line with the punishments at Paragraph 18 or any other punishment as the National Assembly may prescribe.

It is plain that the Tribunal has no criminal jurisdiction, but a disciplinary jurisdiction over public officers who contravene the Code. To make it abundantly clear that the Tribunal is not to try criminal matters, the Constitution provides that any public officer adjudged and punished for contravention of the Code can also be prosecuted and punished for same infraction by a court of law if the breach of the code constitutes a criminal offence. See Paragraph 18(6) of the 5TH Schedule to the Constitution.

Argument could be made that the National Assembly can expand the jurisdiction of the Tribunal by virtue of Paragraph 15(4) of the 5th Schedule which provides that “the National Assembly may by law confer on the Code of Conduct Tribunal such additional powers as may appear to it to be necessary to enable it more effectively to discharge the functions conferred on it in this Schedule; and that as result the Code of Conduct Bureau and Tribunal Act, 1989 enacted pursuant to this provision is constitutional and valid.

THE ACT IS INCONSISTENT WITH THE CONSTITUTION

The argument is tenuous. The law is settled beyond any controversy that a person or authority to whom powers are delegated must act within the confines of the enabling law. Paragraph 15(4) enables the National Assembly to confer “additional powers” on the Tribunal not additional jurisdiction. Rather, the National Assembly expands the jurisdiction of the Tribunal to include the prosecution of criminal matters.

There is a clear distinction between “powers” as contemplated in the above section and “jurisdiction.” Much as these two terms, jurisdiction and judicial power, are closely interwoven, and invariably one is used in place of the other, they are mutually exclusive. In the configuration of powers in democratic governance, the Constitution usually bestows judicial powers on the Courts, which are warehoused in the Judiciary. The subtle difference between these terms readily comes to the fore in the case of Ajomale v. Yaduat (No. 1) wherein the Supreme Court held:

I think this is an error emanating from confusion of the exercise of power with the question of exercise of jurisdiction. Where a court has no jurisdiction, with respect to a matter before it the juridical basis for the exercise of any power with respect to such matter is also absent. This is because power can only be exercised where the court has the jurisdiction to do so. Jurisdiction is not to be equated with powers. Whereas jurisdiction is the right in the court to hear and determine the dispute between the parties, the power in the court is the authority to make certain orders and decision with respect to the matter before the court.”

Adekeye, JCA added: in Babalola v. Obaoku-ote (2005) 8 NWLR (pt. 927) 386 at 403 that …”Terms judicial power and jurisdiction are frequently used interchangeably – there is a clear distinction between the two “Jurisdiction is… the power of the court to hear and determine the subject-matter in controversy between the parties”. In other words – jurisdiction is the authority of the courts to exercise judicial powers which is the totality of powers a court exercise when it assumes jurisdiction to hear a case. You must first have jurisdiction before you can proceed to exercise power…”

The framers of the Constitution did not intend that the Tribunal shall have jurisdiction in criminal matters. The framers of the Constitution in their wisdom chose the word additional powers not additional jurisdiction. This is deliberate. Examples abound in the Constitution where the framers of the Constitution expressly empower the National Assembly to confer additional jurisdiction on courts. See Section 251(1) of the Constitution.

In so far as the Act confers criminal jurisdiction on the Tribunal it becomes null and void to the extent of its inconsistency with the Constitution. See Section 1(3) of the Constitution.

WHO CAN INVOKE THE TRIBUNAL JURISDICTION: CCB OR AG?

The Constitution is very clear as to how the jurisdiction of the Tribunal can be invoked. Paragraph 12 of the 5th Schedule to the Constitution provides that any allegation that a public officer has committed a breach of, or has not complied with the provisions of the Code shall be made to the Code of Conduct Bureau. Paragraph 3 (a –g) of the 3rd Schedule to the Constitution enumerates the powers and functions of the Code of Conduct Bureau. Section 3(e) provides that the Bureau shall have powers to receive complaints of non- compliance with, or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and where, appropriate, refer such matters to the Code of Conduct Tribunal.

It is plain from the above that it is only the CCB that can invoke the jurisdiction of the Tribunal. The AG has no power to initiate criminal proceedings before the Tribunal.

CONCLUSION

There is no gain saying that a successful fight against corruption in a democratic society, like ours, requires a proper legal framework that will inspire confidence in the populace. This is important because of many years of brazen impunity by corrupt politicians and the perception, rightly or wrongly, that they are encouraged by the judiciary with the active connivance of lawyers to escape punishment by circumventing the law based on technicalities. Cases abound where jurisdictional issues took over 12 years to settle. Alleged corrupt public officers’ trials have been scuttled, delayed and some were out rightly discharged on technical grounds. Nigerians’ belief in the judicial system for justice is dwindling by the day. Saraki vs. Federal Republic of Nigeria affords the Supreme Court the opportunity to determine the status, powers and jurisdiction of the CCT once and for all. It is an opportunity to establish the rule of law, and strengthen Nigerians’ belief in the judiciary. It is time to lay a proper legal framework for the fight against corruption.

*Mr Ogungbamila is a Partner & Head Litigation, Olisa Agbakoba Legal

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